Federal Drug Laws Under Bill C-37: Lives on the Line

Yesterday marked a historic day for Canadian drug policy, with Minister of Health Dr. Jane Philpott and Public Safety Minister Ralph Goodale announcing reforms to Canada’s problematic Controlled Drugs and Substances Act and related federal laws. Bill C-37, the proposed legislation is, however, at once exciting and deeply troubling.

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While we are encouraged by the Liberal government’s commitment to supervised injection services, we also have deep concerns about the regressive reforms being proposed that focus on drug prohibition and law enforcement.

Canada’s Drug Strategy

Under Minister Philpott, the government has taken important steps to increase evidence-based health services for people who use drugs, including increased naloxone availability, access to heroin assisted treatment, and exemptions for Vancouver’s Insite and the Dr. Peter Centre to operate supervised injection programs. We applaud Minister Philpott's stated commitment to harm reduction and the reframing of supervised injection as a health issue rather than a criminal one.

Supervised Injection and s. 56.1 of the Controlled Drugs and Substances Act

In order to legally operate a supervised injection facility in Canada, one must first obtain an exemption under s. 56.1 of the CDSA to immunize operators and clients from arrest for drug possession. Bill C-37 proposes to repeal various components of the existing s. 56.1 application process, put in place by the previous government as part of the ill-named “Respect for Communities Act,” which made it extremely difficult for safe injection sites to be established and renewed.

The 26 mandatory criteria required for exemption applications will be replaced by 5 factors originally set out by the Supreme Court of Canada in the landmark Insite decision. Under the proposed law, an applicant would have to provide evidence the intended public health benefits of the site and information, if any, related to: (a) the impact of the site on crime rates; (b) the local conditions indicating a need for the site; (c) the regulatory structure in place to support the site; (d) the resources available to support the maintenance of the site; and, (e) expressions of community support or opposition.

The clause limiting the granting of exemptions to “exceptional circumstances” will be repealed and the Minister will no longer be obligated to consider the 6 guiding “principles” that explicitly undermined harm reduction and evidence-based health care.

The Minister will be permitted to begin reviewing application components as they are submitted, even before the application is completed.

The Minister will be required to provide written reasons in the case of a denial.

We hope that Bill C-37 will address the existing legislative impediments to supervised injection, but we remain concerned.

Under the new law, applications will still require significant amounts of time, funding, human resources, coordination, and community support. Government consultation, review and approval will take additional time. It is foreseeable that in smaller communities across Canada, particularly those with minimal harm reduction resources and/or strong community opposition to supervised injection, the new application process, however streamlined, will still pose significant challenges.

In major cities too, the process will likely take months to complete and may be stymied by community opposition that is grounded in prejudice against people in need of supervised injection services. This is deeply troubling, considering the spread of overdose deaths across the country and the critical role that supervised injection plays in the survival of people who use drugs.

Public Health Emergencies: No Help When We Need it Most

The costs of these delays are human lives. Because of this, we are especially concerned that Bill C-37 does not provide a mechanism to expedite s. 56.1 exemptions in the context of a public health emergency. Given the magnitude of B.C.’s current overdose crisis, we were hopeful that the federal government would empower the provinces and territories to authorize supervised injection services during such emergencies, allowing facilities to operate pending an expedited s. 56.1 exemption.

We believe that it is incumbent on the federal government to consider how this legislation can be crafted to allow all levels of governments to do everything in their power to take immediate action to save lives, including giving this power to the Provinces and Territories on an interim, emergency basis.

A lack of provincial empowerment in the midst of public health emergencies means that grassroots organizations will continue to bear the burden of responding to the immediate need for supervised injection, overdose outreach, and other emergency harm reduction services. In the absence of financial supports and despite the risk of criminal sanction, drug user groups and their allies will be forced to take action first. We recently saw this in Vancouver’s Downtown Eastside, where the provincial government only began sanctioning overdose prevention sites months after grassroots groups took action to open unsanctioned sites. This is neither acceptable nor sustainable; Bill C-37 presents an important opportunity to make meaningful change if it can provide for immediate authorization in these emergency circumstances.

Continuing to fight a losing and harmful battle

Despite these proposed amendments, we are dismayed that the predominant focus of Bill C-37 is on drug law enforcement.

The government’s emphasis on halting the production of illicit opioids will not stop fentanyl production in Canada or abroad and will not turn this crisis around. Banning pill presses, increasing powers of search and seizure, increasing criminal penalties, and allowing the Minister of Health to fast track the banning of new substances is not the solution. Such approaches have not worked in the past and it will not work now.

It is time to learn from our mistakes and to realize that Canada is ready for a new approach – an approach that is grounded in evidence, health, and human rights. Our communities need legislation that will end the criminalization of people who use drugs, and the individuals and organizations who provide health services to them. The federal government needs to ensure that health care for people who use drugs is no longer treated as a matter of criminal law, and to empower provinces with the authority to ensure the provision of life-saving services.

Pivot Legal Society is located on stolen lands of the xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and səl̓ílwətaʔɬ (Tsleil-Waututh) peoples. We are grateful to Indigenous Peoples for their continuous relationship with their lands and are committed to learning to work in solidarity as accomplices in shifting the colonial default.